Morality of Cooperation in Evil

MORALITY OF COOPERATION IN EVIL (Part I)

Editorial Staff of the Seido Foundation

Contents

Obligation to pursue the good always
References
MORALITY OF COOPERATION IN EVIL (Part II)
Cooperation in evil and voting
Role of Judges and Lawyers in application of unjust laws
References

The Obligation To Pursue The Good Always

The social nature of man entails a broad network of interpersonal relationships which diversely reveal each person's need of the help of other persons for his own betterment and the frequent need of cooperation among many different persons for the attainment of common goals. In most cases the activities of any individual presuppose and depend upon the activities of other persons.(1)

As a result, each person is morally responsible for his own actions not only in themselves but also inasmuch as they have an influence on the good or evil actions of others. The first principle of the natural moral law requires doing good and avoiding evil. One of its consequences is that each individual not only has to do good himself but also has to avoid his good actions' being an occasion or providing a means for others to do evil. In fact, he ought to strive as far as possible to insure that others do good.

The obligation to cooperate in good should lead Christians to make every effort to secure that the life-giving principles of Christ's message inform every area of their activity, including their professional work.(2) They cannot be satisfied with avoiding any personal evil actions, but must also take into account the influence that their own deeds may and should have in promoting the upright activity of others.

When Christians fulfill their duty to spread the truth and to procure that civil law agrees with natural law and that the various segments and activities of society are informed by the spirit of Christ, they have to be ready to face up to misunderstandings and difficulties. They should also realize that their professional prestige provides the human basis for apostolate in their own surroundings and that very often they can and should do much more than they might at first think possible.

Nonetheless, in certain practical situations there will be persons who take advantage of the good works of others for their own evil activity. Hence it is not infrequent than an honorable person has to examine his own activity to be sure that he is acting well when he cooperates in some fashion in the sins of others, that is to say, to ascertain if the circumstances are such that they may allow his own good actions to be used by another for an evil purpose. There will, in fact, be times when a person will have to pray with the Psalmist, <Cleanse me from my unknown faults>!(3)

Those cases in which Moral Theology considers it <lawful to cooperate in the evil of another> cannot be viewed as <exceptions> to the obligation to seek the good in all things and at all times, since that is the most basic principle of morality and does not admit of exceptions. The lawfulness of cooperation in evil in certain circumstances is based on the pursuit of the good.

Before considering the moral principles that underlie the lawfulness of cooperation in evil in certain circumstances, the universal obligation to spread truth and do good must always be considered. It is not sufficient to consider the <actual> circumstances in a given case, since it often happens that the circumstances would not be the same if appropriate means had been employed beforehand (<in causa>). One such means is the apostolate which each Christian has to carry out in his own surroundings:(4) prayer, mortification, professional example and prestige, friendship with colleagues (doctors, businessmen, politicians, or what have you), dissemination of sound doctrine, etc.

Only if these means have been employed, or at least there is a readiness to employ them, would it be possible to consider the lawfulness, and in extreme cases even the advisability, of certain forms of cooperation in evil, which in such cases would in no way be inconsistent with unity of life and doctrine.

The Nature And Kinds Of Cooperation In Evil

Cooperation in evil has a very broad scope since it encompasses every form of concurrence in the evil action of another person. It ranges from ordering or advising others to perform some illicit action to selling an intrinsically good object to a person who will use it for a morally evil purpose.

Nonetheless a distinction is usually made between <scandal> (an action by which another person is incited to sin) and <cooperation> in a strict sense (an action which enables or facilitates another's sinful action without directly influencing the other person's will to sin). Thus those forms of cooperation in evil (in the broad sense) which influence the other person's will to sin (commands, advice, and the like) are really equivalent to scandal, which is never lawful.(5)

Cooperation in evil (in the strict sense) can be broken down in several types on the basis of distinct criteria: positive and negative (omission); necessary; sufficient and insufficient; formal and material. The latter is the most important distinction. Cooperation in the sin of another precisely inasmuch as it is a sin is called formal cooperation, i.e., when the cooperator wishes the person to commit the sin or consents to its commission, whether or not he expresses this externally. Cooperation in the sin of another only inasmuch as it is a physical action, without desiring or consenting to the other's sin, is called material cooperation.

Of practical interest is the distinction between immediate or direct cooperation or mediate or indirect cooperation. Cooperation is immediate or direct if it concurs in the sinner's action itself, e.g., a person who helps a thief load the stolen goods. Cooperation is mediate or indirect if it provides some means that are used by another to sin, even though there is no necessary relationship between the means and the sin, e.g., selling a weapon to a person who then uses it to commit murder.

A further distinction can be made between proximate and remote cooperation in accord with the greater or lesser physical or moral connection between the action of the cooperator and that of the sinner. Of course all immediate cooperation is also proximate. Not all mediate cooperation, however, is a remote cooperation. A person who deposits his money in a bank is indirectly or remotely cooperating with a person who uses a loan from that bank to publish pornographic magazines, but the bank official who grants the loan for that specific purpose is cooperating indirectly and <proximately>.

Principles For Assessing The Lawfulness Of Cooperation

As has already been stated, any cooperation which directly influences the other person's will to sin is scandal and is always illicit. There is a twofold malice in this case: against charity toward one's neighbor (the person induced to sin) and against the virtue violated by the other person's sin.

Formal cooperation in evil is also always illicit; the desire or consent to the other's sin is itself a sin with a twofold malice (like scandal). As St. Paul says: "... those who practice such things are deserving of death. And not only do they do these things, but they applaud others doing them."(6)

Simple material cooperation in general is also illicit since charity obliges us not to help another sin and even hinder the person from sinning to the extent that it is possible.

There may, however, be particular circumstances in which it is licit to render material cooperation in the sin of another in order to achieve a necessary good or avoid a great harm. Such cooperation rests on the fact that "charity, by which we are obliged to avoid it (the other person's sin), does not oblige if there is great difficulty."(7) Obviously if the good effects can be obtained in other ways, cooperation in evil is not licit. The assessment of whether or not it is possible to use other means in lieu of cooperation in evil does not bear on the physical possibility of alternate means but on the moral possibility in the particular case (even if it entails extra effort, less profit or the like).

Even if cooperation is the only possible means to obtain a given good, it does not follow that it is necessarily licit to do so. The moral judgment has to be made in each case in the light of <all> of the conditions required for the indirect voluntary (double effect).

—a) The action of the person cooperating in evil must be intrinsically good or at least indifferent in itself (if it is evil, the action is usually considered to be formal cooperation even if the cooperator does not will the other's sin).

—b) The intention of the cooperator has to be good, i.e., not only must he not desire the evil action of the other (else it would be formal cooperation) but he also must not be seeking any other illicit goal;

—c) There must be a just cause, i.e., a due proportion between the good that is pursued in this cooperation (or the evil being avoided) and the evil which occurs because of this cooperation;

—d) The good effect that is sought must not be obtained as a >consequence> of the evil effect, i.e., the good effect must be the direct result of the action of the cooperator and not the effect of the sinner's sinful action.

In order to assess the condition mentioned in c), it is necessary to take into account the following moral principles.

—a) The cause or motive that justifies a material cooperation in evil must be all the more important as the sin of the other is more serious;

—b) The cause must be all the more important, the more probable it is that the other's sin would not be committed without this cooperation, or the more certain the effect of the sin is;

—c) The cause has to be all the more serious, the more proximate the cooperator's action is to the sinner's action;

—d) The cause has to be all the more important, the lesser the right of the cooperator to perform the action whereby he cooperates;

—e) The cause has to be all the more serious, the more opposed to justice the sin is, having regard for the possible harm to third parties.—Actually this could be considered to be encompassed in a) above.

In regard to b), the mere fact that if one person does not cooperate someone else will does not make the cooperation licit. Similarly, the cooperation is not justified merely by the fact that the other person will commit a sin even without it.

Even when all of the conditions necessary for licit cooperation are fulfilled, two additional very important obligations have to be considered:

—a) Scandal to others must be avoided. Many people, especially those who are simple or not very educated, easily look upon cooperation in the sin of another as approval of that sin. "In applying the principle of material cooperation, in those cases in which it applies, great care must be taken to avoid scandal and the danger of doctrinal confusion"(8);

—b) Proximate occasions of sin have to be avoided. Cooperation in the sins of others often entails the danger of eventually consenting to those sins. Consequently all necessary precautions have to be taken. Furthermore, even if the sinner cannot be persuaded to abandon his sins, objecting to them can still be beneficial in forcing him to think.

Of course it is quite difficult to assess the adequacy of the cause. For this very reason it is very important to be sure that there is a right intention, to bring these matters to prayer, considering them in the presence of God, and to seek advice (avoiding excessive reliance on one's own judgment). "The traditional teaching about material cooperation, with the required distinctions between necessary and free cooperation, between proximate and remote cooperation, remains valid and has to be applied with very great prudence."(9)

By way of conclusion it would be well to point out that in these matters there should not be an attitude of trying to establish at least a minimal lawfulness in order to avoid complicating one's life. It has to be viewed in the light of the obligation to pursue the good, to help others through a positive cooperation to insure that family, social and professional relationships are ever more deeply imbued with the spirit of Christ. This contributes to the establishment of a society more worthy of human dignity, since man was created in the image and likeness of God and has been called to enjoy him eternally in glory.

Cooperation In Abortion

For a start, simple material cooperation is illicit in general since charity entails the obligation to refrain from helping others to sin and even to hinder them as far as possible. There are due causes which exempt a person from this obligation, and, in consequence, there may be individual cases in which material cooperation in the sin of another is legitimate.

Cooperation in abortion, in such circumstances, is an action with a twofold effect (an evil effect, which is the unjust privation of an innocent person of life, and a good effect, such as not losing one's job). The following principles apply to such double-effect actions:

—a) The action of the cooperator must be in itself good or at least indifferent or else it will be illicit. Hence every integral part of the abortive operation would always be gravely sinful even if it is performed by assistants of the principal agent (e.g., surgical incisions, extraction of the fetus).

—b) The cooperator must have an upright intention or his action will be illicit, namely, not desire the evil action or any other illicit goal. In the case of abortion this is rather easy to ascertain. It should be made clear, however, that a good intention does not make an intrinsically evil action good. A good intention is a necessary prerequisite for any good or indifferent action.

—c) The good that is sought by the action of the cooperator must not be a consequence of the evil effect or the action will be illicit. This too can be ascertained rather easily, since it would be extremely rare that the good desired by the cooperator would be a consequence of the death of a child.

—d) There must be a proportionately grave cause if the evil is to be permitted to occur through material cooperation. This condition requires the more attentive consideration. If all of the conditions above are fulfilled, the gravity of the cause must be carefully weighed to determine if the cooperation in abortion would be licit.

In a general way the elements indicated elsewhere in this essay have to be taken into account in order to ascertain the presence or absence of a sufficient cause to allow material cooperation in another's sin.

In the case of abortion, the sin with which cooperation is being considered is an extremely grave sin and an extremely grave injustice is committed against an innocent third party, who is deprived of life and, normally also the possibility of eternal salvation, since the fetus cannot usually be baptized.

In practice the basis for ascertaining the legitimacy of material cooperation in abortion reduces to the assessment of <the proximity of the cooperator's action> to the action of abortion itself. The more proximate the action, the more severe the cause must be for the cooperation to be licit.

The proximity of the cooperator's action depends on both <physical proximity> and <moral proximity>. Not just the actions performed in the operating room, but also other actions which are uniquely directed to abortion are immediately proximate, and such actions would be an <immediate or direct material cooperation> (e.g., administering anesthetics prior to the operation, issuing a medical certificate to authorize the abortion).

Given the gravity of the crime of abortion, such <immediate or direct material cooperation> is never licit. The Italian Episcopal Conference, through a statement of its president on July 1, 1978, asserted that "a) direct abortion is never licit; b) likewise proximate cooperation in abortion, such as that required of the operating team in the operating room, is never licit."(10)

There may, however, be situations in which <indirect or mediate material cooperation> in abortion may be licit. This of course is only true in those countries in which civil law permits abortion and does not recognize the rights of conscientious objection (or where it is theoretically recognized but in practice serious harm results from a refusal to cooperate). In other cases the possible legitimacy of cooperation cannot even be considered, since other means provided by the legal system can and must be used in order to offer clear opposition to all cooperation to the crime of abortion.

Given the gravity of abortion, even <indirect or mediate> material cooperation would require a grave cause to be licit, the degree of gravity depending on the degree of proximity of the action to the abortive act itself. In a statement of June 6, 1978, the Vicariate of Rome stated: "Mediate material cooperation in the preparation and execution of abortion is only allowed if its refusal would cause the health personnel who have appealed to conscientious objection (doctors, paramedics and all who work in the health field) harm proportionate to the assistance required of them."(11)

The gravity of abortion requires in all cases that the harm being avoided is grave and that it be impossible or very difficult to resolve the problem even afterwards.

Advertising In Immoral Publications

The large circulation which some immoral publications (pornographic, anti-religious,...) unfortunately attain and the practice of some advertising agencies give rise, at times, to the question of the moral legitimacy of advertising one's own products or services in such publications.

This would be an unquestionable cooperation in evil and could only be legitimate if all the conditions which were mentioned above are fulfilled.

Special prudence must be employed in assessing the following conditions in the case at point:

—a) If the effect desired by such advertising (namely greater sales) can be achieved in other ways, then placing advertising in such gravely immoral publications would be illicit.

—b) If no other means are possible, the gravity of the cause required for such cooperation to be licit would have to be all the greater, the greater the immoral character of the publication involved. In the case of intrinsically immoral publications (such as directly pornographic or anti-religious publications) there are no possible sufficient causes, in practice, which would legitimize payments to such publications.

—c) In any event it would be necessary to avoid the scandal that would be caused to those who would see advertisements of a company run by Christian people appearing in publications subject to serious moral reservations, which does not seem to be a very easy task.

It should also be kept in mind that it would be a very sad state of affairs if a magazine which is a proximate occasion of sin for many persons were to be financially supported by the advertisements of a number of companies run by Christians.

It must also be kept in mind that even though the exclusion of one's own advertisements would not have any influence on the circulation of the publication, this has no bearing on the possible legitimacy of this sort of cooperation in evil. The decision of another person to do evil is never a justification of one's own cooperation.

References

(1) Cf. II Vat. Council, Pastoral Constitution on the Church in the Modern World, no. 25

(2) Cf. II Vat. Council, Decree on the Apostolate of the Laity, no. 16

(3) Ps. 18,13

(4) Cf. II Vat. Council, Decree on the Apostolate of the Laity, no. 7

(5) Cf. Matt. 18,6ff.; St. Thomas, II-II, q. 43, 2.2

(6) Rom. 1,32

(7) Denz. 2715, 2758, 3634

(8) Sacred Congregation for the Doctrine of the Faith, <Quaecumque Sterilizatio>, Mar. 13, 1975

(9) Sacred Congregation for the Doctrine of the Faith, <op. cit.>

(10) <L'Osservatore Romano>, Dec. 17, 1978

(11) <Ibid.>, June 7, 1978

[This is the thirteenth in a series of articles on the Catholic Faith prepared jointly by the editorial staff of the Seido Foundation.]

MORALITY OF COOPERATION IN EVIL (Part II)

Moral Problems Related to Voting When there are Laws Opposed to Natural or Divine Positive Law

Cooperation In Evil And Voting

All are obliged to cooperate in the good. A Catholic should not be satisfied merely to vote against a proposed law which would be opposed to natural law or divine positive law on the pretext that he fulfills his duty thereby. In accord with his Christian vocation, he is obliged, in keeping with his possibilities, to engage in a constant intense doctrinal apostolate without compromising because of a pseudo-prudence or being afraid to swim against the current. He must keep in mind that his moral responsibility is not limited to private matters alone. When faced with laws, or proposed laws, which affect the very foundations of social order, he has to do all that he can to insure that the teachings of the Magisterium (which are not <opinions> but <truths>) contribute to the configuration of societal life by means of his own diligent, responsible public activity. The laws that are approved in any country will depend to a large extent on what each citizen does personally and influences others to do.

In making professional, social and political choices, each individual has to act with personal freedom and responsibility, but he must adhere to the principles and teachings of the Church with the conviction that in these matters the requirements of ethics stem not only from divine revelation but also from natural law, and that the Magisterium of the Church is the true interpreter of natural law which applies universally to <all> men, whatever their beliefs.(1)

Hence a Christian must not foster the legalization of divorce or the maintenance of that situation either by his words or by a misguided behavior or attitude. If his conscience is well- formed by faith and the Magisterium of the Church, he will clearly realize that divorce is always a social evil in and of itself. The legalization of divorce is itself a certain <incitement> to divorce, since such legislation <induces> many people to identify the "legal" with the "ethically legitimate." It also leads lawmakers to set out on the course of gradual extension of the motives that justify severing the marriage bond. The legalization of divorce offends the dignity of marriage which is lost sight of in the "plague of divorce."(2) Notwithstanding the efforts of good Christians, it may happen that such laws will still be passed, but Christians can never foster them, approve of them, or give up the effort to eliminate them.

To do otherwise would amount to becoming a cooperator in evil, which would be a grave or venial sin in keeping with the gravity of the matter being legislated. One form of cooperation in evil is <consent>. There is consent when a person externally approves of an evil either by an unjust vote or by unjustly abstaining from voting which is also an effective cooperation in causing harm to others.

This form of unjust cooperation occurs when a matter has to be resolved by votation of all who have a right to vote, e.g., the members of a judicial panel, the members of a legislative body, a general referendum.

Cooperation In Evil By Voting For A Law Opposed To Natural Law

It is never to licit to vote—either in a general referendum or within a legislative body—for a law which is contrary to natural law (e.g., for a law legalizing divorce or abortion) even only to avoid a worse law. It would be an intrinsically evil action with a direct evil effect done to obtain a good or lesser evil indirectly, and that is always sinful. We cannot do evil in order that good may come of it. For actions with a double effect to be licit, the action itself must be good and the good effect must not be the consequence of the evil effect; neither of these conditions are fulfilled in the case in point.

The efficacy of consent or of a vote must be inferred from the effects. Obviously if the harm would not have occurred if a given advisor or voter had not been in favor, then his vote is an effective cause of the harm (e.g. in judicial tribunals or in committees which adopt resolutions which violate justice). It does not follow, however, that, even if the harm would have occurred notwithstanding the person's abstention from voting, the person could therefore vote in favor on the pretext that his vote is ineffective anyway: when many agree in a common end, all act as though they were a single person by virtue of the identification of their wills. Therefore all are effective causes of evil, since all joined together in producing it. This continues to be true even if there are more votes than the minimum required by law.

Hence all who vote for an evil option are effective causes of the harm which occurs. The fact of voting because of the decision of the party would never justify the act or excuse from sin. Personal conscience and responsibility can never be relegated in this way. All who have voted in favor of something harmful share the responsibility in proportion to their own participation is bringing about the harm, because they have all contributed to the approval of the law or agreement.

Nevertheless a citizen who takes part in a legislative body and who has not been able to block an immoral law can take part in the determination of particular sections of the law. He can vote or abstain from voting for particular sections of the law which are not immoral and for amendments which would make the law less harmful. Even so, all scandal must be avoided and disagreement with the general content of the law must be expressed.

Cooperation In Evil By Failing To Vote

Those who have an obligation to vote could become responsible, by omission, for harm caused if they could have affected the outcome by their vote, since voting is a duty of citizens or of office (members of a judicial tribunal, etc.), and it is a moral religious duty. The seriousness of this duty may vary according to circumstances. In general the obligation of voting is all the more serious the more uncertain the result of the vote will be and the more the various legitimate religious, moral and social interests of the community are at stake in the vote. In some circumstances the failure to vote could be a grave sin. By way of example, in the political situation of Italy in 1948 Pius XII stated: "Whoever abstains, especially through indolence or cowardice, commits a grave sin, a moral sin."(3) Evidently that does not mean that it would be illicit to cast a blank vote or to abstain when such an action is responsibly considered as the most effective way in certain circumstances to protect the moral and social order. It would then be a form of vote just as legitimate as others, when it does not arise from indolence or cowardice.

Cooperation In Evil And Tolerance

In some circles an effort has been made to apply the principle of tolerance to the case of laws opposed to the law of God. By virtue of this principle it is licit to tolerate an evil in order to avoid even greater evils. Such an application of this principle is a great mistake, however, since no law which is contrary to natural law (e.g., legalization of divorce) is ever "tolerance" in the sense allowed by moral law. Tolerating the evil is one thing, e.g., not punishing those who violate the law, and legalizing the evil, which authorizes it, is quite another.

Pius XII explained the principle of tolerance in these terms: "The duty to repress moral and religious deviations can never constitute an ultimate rule of action. It has to be subordinated to <higher, more general rules>, which <in some cases> permit a course of action, or even render a better course, by which an error is not impeded for the sake of fostering a greater good."(4)

Further explaining the right interpretation of these words of his, Pius XII stated: "First: anything which is not in accord with truth and the moral norm does not possess any right to exist or to be disseminated or to be acted upon. Second: the failure to impede it by means of civil laws and sanctions may be justified in the interests of a superior broader good. Whether this condition is verified in a given case—this is a question of "fact"—or not is a matter which has to be judged in the first instance by the Catholic statesman. In making his decision he must be guided by the harmful consequences which would derive from tolerance as compared to the harmful consequences to the community which are avoided by pursuing the course of tolerance."(5)

The "factual" question relates to the evaluation of the circumstances which would favor <tolerance>, in the correct sense, namely, the <abstention from repressing> a given evil.

Such tolerance must be clearly distinguished from the <positive authorization> of an evil, which is always illicit: "No human authority, no State, no community of states, whatever its religious character, can issue a positive command or a positive authorization to teach or do anything contrary to religious truth or the moral good."(6)

Thus it might happen as a question of "fact" that it would be opportune not to repress adultery, but it would never be licit to authorize it positively, merely changing its name.

Once again let it be emphasized that tolerating an evil, which may be licit or even advisable for sufficient reasons, is one thing, and quite another is a positive cooperation in evil by way of express authorization, which is always a sin.

The Role Of Judges And Lawyers In The Application Of Unjust Laws

General Rules

At every phase and moment in the legislative process Catholics who have any part in the elaboration of laws have a grave duty to carry out an intense and constant apostolate of doctrine in order to insure the passage of just laws; they must do this without any false sense of prudence and without fear of swimming against the current.

Notwithstanding the positive influence of Catholics, however, it does happen that laws are approved which contravene the natural law and whose application gives rise to a serious problem of cooperation in the evil of other persons. Some examples of such laws would be those approving divorce, the advertisement and sale of contraceptives, and abortion.

When a law is patently unjust, lawyers and judges cannot take a passive stand, casting all blame on the lawgivers. Even though the latter are principally responsible, nonetheless those who apply or defend these laws take part in the injustice through their cooperation. Formal cooperation is always illicit and material cooperation is only permissible when there is a just cause.

Particularly in the cases of judges, it must be remembered that they exercise an interpretative role, in the broad sense, by applying the law to concrete cases. In the case of unjust laws the judge must interpret the law restrictively with the aim of correcting the law itself and mitigating the injustice wrought by its application. It must be remembered that the autonomy of civil law is intrinsically linked to the moral law: "Human values, moral values are at the basis of everything. Law cannot set them aside, neither in its objectives nor in its means. Its rightful ordered autonomy is intrinsic to the moral law, in which, besides, it encounters not really a brake, or a restriction, but the fertile soil of its dynamic and planned development."(7) Furthermore, "... the law should not be a mere recording of what is happening, but a model and stimulus for what must be done.... One thing is certain: there is a Christian consistency in public life; a Christian must always be a Christian, at all levels, without wavering, without giving way; in deeds, and not just in name."(8)

Furthermore, as a general rule, neither a judge nor a lawyer may act in these cases in such a way that his action would amount to an approval of injustice or give rise to scandal in the concrete circumstances.

In the absence of any danger of scandal or of any other public spiritual harm, very important motives must also be present for it to be licit for judges or lawyers to render material cooperation in the application of unjust laws. Such grave motives would include the grave common harm that could befall Catholics or the Church in general if Catholic judges were to refuse to take part in the application of divorce laws, for instance. Removal from the bench is also considered a proportionately grave cause. The removal of honest judges would be detrimental to society as well.

The Church has provided a number of basic rules:

1: "For every sentence passed, the principle holds good that the judge cannot purely and simply disclaim all responsibility for his decision, placing it totally on the law and on its authors. These are certainly principally responsible for the effects of the law itself. But the judge, who with his sentence applies it to the particular case, is a party to it, and therefore shares the responsibility for those effects."

2: "The judge may never with his decision oblige anyone to commit any intrinsically immoral act, that is, an act which is by nature contrary to the law of God and of the Church."

3: "He may in no case expressly recognize and approve an unjust law (which, in any case, would never constitute the basis of a valid judgment before his conscience and before God). He cannot therefore pronounce a penal sentence which would be tantamount to such an approval. His responsibility would be even more grave if his sentence were to cause a public scandal."

4: "However, not every application of an unjust law is equivalent to recognizing and approving it. In this case, the judge may—and sometimes, perhaps, must—let the unjust law take its course, when that is the only way to avoid a still greater evil. In order to avoid harm or to ensure a good of much greater importance, he may inflict a penalty for the transgression of an unjust law if it is of such a nature that the person involved is reasonably disposed to endure it, and provided the judge knows and can prudently suppose that such a sanction will be readily accepted by the transgressor, for superior reasons. In times of persecution, both priests and laymen have permitted themselves to be sentenced, without putting up any resistance, and even by Catholic magistrates, to pay fines or to be deprived of their personal freedom, for infraction of unjust laws, when by so doing it was possible to preserve for the people an honest magistrature and ward off from the Church and from the faithful much more terrible calamities. Of course, the more gravid of consequences is the judicial sentence, the more important and general must be the good it aims to protect or the evil it aims to avoid. There are, however, cases in which the idea of compensation through attainment of superior benefits of the banishment of greater evils cannot apply, as for instance in the death sentence. In particular, the Catholic judge may not pronounce, unless for motives of great moment, a sentence of civil divorce (where it exists) for a marriage which is valid before God and the Church. He must not forget that such a sentence, in practice, has not civil effects only, but in reality leads rather to the erroneous belief that the present bond is broken and the new one valid and binding."(9)

Civil Judges And The Application Of Divorce Laws

Civil judges should explicitly acknowledge their incompetence in matters which touch the sacrament of matrimony. In countries where ecclesiastical authorities have a mutual agreement with civil authorities (concordate), authorized judges may decree temporary separation in the case of canonical marriage. Judges may issue a decree of divorce when the prior marriage was null (e.g., in case of Catholics who entered a civil marriage, and in the case of persons whose putative marriage was declared null by the Church). Only when there are grave motives, however, may a judge issue a decree of divorce in the case of marriages which are valid in the eyes of God and the Church.

If he were to be threatened by grave harm, the judge may, in the exercise of his judicial duties, issue a decree of divorce, but he has the grave obligation to make clear in an unequivocal manner that his judicial decree has no effect whatsoever with regard to religious marriage which is always unique and indissoluble. He should also make clear that all he is doing by his decree is to declare that the present case falls among those which the law considers as a cause for divorce. He cannot be accused of having severed the marriage bond (which no one has the power to sever), since he has limited himself to declaring that in the view of the State these two spouses are no longer considered as man and wife. Such a decree deprives a valid marriage (in God's sight) of its civil effects and legal recognition, and provides legal impunity if they choose to enter into a civil marriage.

Clearly when taken in this sense the decree is not intrinsically evil. However it does render possible a subsequent civil marriage and the judge therefore becomes a proximate material cooperator in the evil of another person. The judge should not lose sight of the fact that even though such a decree only bears on the civil effects of marriage, it does in fact lead toward the error of considering the marriage bond itself to have been severed and any subsequent civil marriage to be valid and binding. This gives rise to the need for a very serious motive which would be proportionate not only to the harm produced but also to the scandal which results not merely from the apparent upholding of an unjust law but also from words and deeds which lend themselves to a mistaken interpretation which becomes an occasion of sin. Evidently the mere fact that a judge would earn less money if he refused to handle such cases or that he would thereby suffer detriment to his professional prestige would not be a sufficient motive. If such a refusal would require that he abandon the bench, leaving it entirely in the hands of persons of less sound moral standards, that could constitute sufficient grounds.

In those countries where divorce has long been legal or canonical marriage is not civilly recognized, divorce decrees do not usually cause scandal. Judges may take this into account, although grave motives are still required.

In countries where divorce has only recently been made legal, however, consideration must be given in weighing the gravity of motives to the great evil which occurs and the great scandal produced by the introduction of this social evil. The need to defend the indissoluble natural character of marriage which has heretofore held sway intensifies the common obligation to oppose unjust laws. And this will bear more especially on those who have the role of applying the law.

Judges And Civil Marriage

In the case of non-baptized persons, judges (or other legally authorized persons) may attend and authorize legitimate marriages, provided that they know that there are no impediments arising from natural law.

There is no special difficulty in the case of civil marriages of non-Catholic Christians. Difficulties only arise if it is certain that there are impediments to a valid marriage. The most common instance would be that of Protestant couples, one of which is divorced from a surviving legitimate spouse. In both cases, unless refusal would occasion great harm or notable detriment, the judge must refuse to participate. If there is danger of great harm, such as losing his job, he may participate since his role is no more than a witness and his cooperation is merely material.

There is greater difficulty when the judge knows, in any way whatsoever, that the persons are Catholics; they would be requesting his assistance in a marriage which would certainly be null and void, since Catholics can only contract valid matrimony in the presence of the competent pastor or his delegate, except in the case provided by Canon 1116 of the Code of Canon Law. In principle a judge cannot authorize such marriages. However, since his action is not intrinsically evil (marriage is conferred by the spouses and the judge only exercises a civil role) he can assist at such marriages if there is a proportionate motive and provided that he first protests, asserting that he is doing no more than fulfill a requisite of civil law out of necessity and in order to avoid worse evils. If he deems it opportune, he should warn the persons, at least privately, of the seriousness of their sin and of the invalidity of the marriage.(10)

Lawyers And The Application Of Divorce Legislation

Given the freedom of lawyers to accept or reject cases, no lawyer may, except for grave motives, accept a divorce case even if he has certainty that once divorced the parties will not attempt to enter a new marriage. Not merely the avoidance of future possible evils is at stake, but material cooperation in the application of an intrinsically evil law opposed to natural law.

Since lawyers have freedom of action, a lawyer cannot justify cooperation (which is clearly unnecessary) on the grounds of possible loss of earnings (whatever the amount) or loss of future clients or many clients. Such motives are in any case not proportionate to the evil involved. The lawyer can exercise his profession in other areas where his conscience will in no way be compromised.

The only possible exception might be where there is no legal separation. Then a lawyer could accept a case where there is no other way to secure important civil effects to which the client has a right, provided that there is a due proportion between the importance and necessity of the good sought and the very grave evils which are consequent on civil divorce, especially the grave scandal and the very grave danger to which the other party is exposed by making possible a subsequent civil marriage.

Judges And Lawyers Faced With Other Unjust Laws

In the case of laws whose object is intrinsically evil, such as the sale of contraceptives, judges and lawyers could restrict their involvement solely to matters of commutative justice, e.g., demanding payment of what is due. Nevertheless given the immorality of the law and the matter itself, any cooperation would require some grave motive.

Decreeing or defending something which is intrinsically evil, such as euthanasia or eugenic sterilization, cannot be removed from the level of formal cooperation, whatever the explicit motive of a judge or a lawyer. The excuse that the judge or lawyer is only applying the law without judging its merits is not valid, since the application of the law is itself an approval of the crime or a granting of legal impunity to the person who commits it with the support of the decree. No one can be obliged to commit an intrinsically evil act, i.e., one which is opposed to the law of God and of the Church.

The Sale Of Contraceptives

The sale of drugs cannot be seen as a mere business transaction, because for the pharmacist it involves a professionally qualified service which has "the obligation of contributing to public health education, especially regarding the moral implications of the use of some drugs."(11) Nevertheless, in order to understand how gravely illicit the sale of contraceptives is, it is sufficient to consider it as a business transaction, without forgetting that the specific professional qualification adds a greater objective gravity to the act.

Concerning the sale of objects destined for morally evil use, authorities quote the following principle: "It is never licit to sell objects which of their very nature do not have any use other than an evil one." St. Alphonsus Liguori appears to apply the same principle when he says: "the sale of a poison which can only serve to kill a man is <simpliciter> evil."(12)

The basis of this principle is clear if the action of selling is considered as an act by which one hands over the property of an object in exchange for money. The moral object of this act can be considered in its relation with commutative justice. But the morality of an act is also affected by the circumstances, and specifically by the circumstance <quid> (in this case the type of object sold). Therefore to sell something which has a morally evil use only, is a sin not from the moral object of selling (if cumulative justice is respected), but rather from the circumstance <quid>. One can also prove the illicitness of this type of sale by adopting the line of argument that the type of object sold (an inseparable and determining factor of the sale) pertains to the moral object of the action of selling. This line of argument seems to be more relevant also because the buying-

selling relationship is a contract, and justice requires that the matter of this contract be <apta>, and so demands that it be honest and licit.

Applying this general principle, moral theologians affirm the illicitness of the sale of contraceptives: "it is never licit to sell an object which of its very nature can only have an evil use and which one cannot use without sinning, as in the case of obscene theatrical costumes, devices destined to impede the generation of life, and abortifacient pharmaceutical agents...."

Pope Pius XII taught this same general criterion when addressing the participants of an international congress of pharmacists: "Sometimes you must oppose the pressure and the petitions from clients who come to you in order to make you accomplices in their criminal intentions. You know that when a product, by its very nature and by the intention of the client, is undoubtedly destined towards a criminal end, you may under no pretext or pressure concede to take part in those crimes against life, against the integrity of individuals or against the propagation of the mental and bodily health of humanity."(13) Pius XII later reaffirmed this general criterion in an address to the International Congress of the History of Pharmacy, 11th September 1954.(14)

One must also bear in mind, though, that it is possible to intervene in the sale of a product with different degrees of intentionality and participation, and these give rise to different grades of moral responsibility. The morality of the act of selling must be considered in different ways according to whether the person who sells is the owner of the object, an intermediary or a salaried employee. In this latter case it can be said that he does not "sell" in the strict sense of the word because the object sold is not his and the money received is not his either. Rather he cooperates, perhaps in many cases only materially, with the seller who is the real owner of the object. Moral problems which may arise in the case of employees in general are traditionally considered in the context of material cooperation in evil.

The proprietor or manager with full authority in a pharmacy should never dispense contraceptive pharmaceuticals: not to heed this norm would be a grave transgression of the moral law. Nor can he sell other types of contraceptives (mechanical devices, spermacides, etc.): the moral illicitness of such devices, even though they are to be used prophylactically, would be even greater than that of the contraceptive pharmaceuticals because of their being further removed from the proper object of pharmaceutical activity. When a customer asks for one of these products, a good answer could be: "we do not have anything in that line." This would take away any doubt that the client might have about the honesty of those pharmacists and about the licitness of their action."

An employee in a pharmacy can cooperate in the sale of these products only when all the circumstances necessary for licit cooperation in evil are present. He should investigate whether he could leave the place of employment without suffering serious hardship. If this possibility is not viable he should set about doing the most positive work possible with the means at his disposal, and in many cases avoid material cooperation in evil: he could, for example, request a prescription, and in a natural and pleasant manner he should try to give clear ideas to customers. There will be occasions when it will be possible and appropriate to say that a given product is not available. Scandal should be avoided, and this means that insofar as it is within his control, contraceptives should not be advertised, or be within sight of the customers, and he should also show in some way to those who work with him that he disapproves of the sale of such products.

If in some case this approach were to be really effective (this would depend very much on the circumstances, on the control which the manager of the pharmacy exercised over the employees, etc.), it would be licit to continue in that place of employment, even when he could easily leave without serious hardship.

Other similar situations, e.g., assistant pharmacist, substitute pharmacist, apprentice, with different jobs and responsibilities in the pharmacy, can be reduced to the case of the pharmaceutical assistant in general. The moral problem of the sale of contraceptives in these different situations can be solved by one of the solutions above: each situation should be analyzed to see which of the above criteria should be applied, taking into account the real control or influence one has over what is sold in the pharmacy.

If there are pharmaceutical products with a real (and not only a theoretical) therapeutic effect, but which also have a contraceptive effect, they may be sold. However very often the marketing publicity of some of these products presents a certain amount of confusion with regard to their real use. The pharmacist is obliged in these cases to be able to distinguish. It is in performing this task that he will show his real professional competence and bring into play his role as a health educator. Although the pharmacist is not strictly obliged to find out, if he does see that the customer only wants the immoral effect, then he should proceed as though it were a simple contraceptive. On occasions customers ask pharmacists for advice: he should be able to suggest the name of a gynecologist of good repute, and even at times a priest.

The fact that almost all contraceptives have abortifacient effects (exclusive or not), increases the gravity of selling them and strengthens the need for truly grave reasons to be present for material cooperation in their sale to be licit. But it does not exclude it always and necessarily since the cooperation which is immediate with respect to the sale is only mediate with respect to any possible abortion.

At a theoretical level one can consider the situation where the owner or manager of the pharmacy has no say whatsoever in what products are sold in it, and has no option but to sell contraceptives. This would be the case if a civil law obliged one to sell them and failure to do so would incur serious penalties. Some authorities solve such cases in the following way: if the pharmacist is obliged by law to sell these products, or if by failure to do so he would incur a <maximum incommodum> and if the number of people looking for them in other pharmacies were not likely to decrease, then the question should be solved in accordance with the principles of cooperation. In other words, in such cases the situation of the proprietor (which in a sense he has ceased to be) becomes equivalent to that of an employee and consequently the criteria mentioned above should be followed.

These circumstances, though, are much more hypothetical than real and certainly do not exist in any country in the free world. Professional associations of pharmacists of various nations have recognized this fact and have also declared that no justification exists for the dispensing of contraceptives in pharmacies.

Without waiting for these extreme situations to arise, pharmacists have the duty of ensuring that proper human and Christian standards are maintained in their profession: they may be able to unite with others to publish declarations on the principles of professional ethics (see, for example, the Declaration of the Belgian Association of Catholic Pharmacists, in "Acofar," n. 148 (1978), p. 46). It is always necessary that the body of professional activity as a whole would be thoroughly Christian and be known as such.

References

(1) Cf. Paul VI, <Humanae vitae>, no. 4 and references; II Vat. Council, Declaration on Religious Liberty, no. 14

(2) Cf. II Vat. Council, Pastoral Constitution on the Church in the Modern World, no. 47

(3) Pius XII, Address of Mar. 10, 1948

(4) Pius XII, Address of Dec. 6, 1953

(5) <Loc. cit.>

(6) <Loc. cit.>

(7) John Paul II, Address to the World Conference on Law, Sep. 25, 1979

(8) John Paul II, Address to Italian Women's Center, Dec. 7, 1979

(9) Pius XII, Address to the First National Congress of Italian Catholic Jurists, Nov. 6, 1949

(10) Cf. Reply of the Sacred Penitentiary, Sep. 24, 1887

(11) F. Alvarez de la Vega, "Etica Famaceutica," Apuntes, University of Navarre, 1982

(12) St. Alphonsus de Liguori, <Theologia Moralis>, III, no. 72

(13) Pius XII, Address of Sep. 2, 1950 (14) Cf. <AAS> 46 (1954), p. 538

[This is the fourteenth in a series of articles on the Catholic Faith prepared jointly by the editorial staff of the Seido Foundation.]

Catholic Position Papers
Series B — Number 31
July, 1985 — Japan Edition

Seido Foundation for the Advancement of Education, 12-6 Funado-Cho, Ashiya-Shi Japan

Original articles published in these Papers may be reprinted without prior permission, if credited to CPP. Copies of all reprints would be appreciated.